Duty of Care Policy

Date: March 2018

DEFINITION:

Legal background

“Duty of care” is an element of the tort of negligence. In broad terms, the law of negligence provides that if a person suffers injury as the result of a negligent act or omission of another, the injured person should be compensated for loss and damage flowing from that negligence.

To successfully bring a compensation claim in negligence a person must establish, on the balance of probabilities, that:

a duty of care was owed to them at the time of the injury

the risk of injury was reasonably foreseeable

the likelihood of the injury occurring was more than insignificant

there was a breach of the duty of care or a failure to observe a reasonable standard of care; and

this breach or failure caused or contributed to the injury, loss or damage suffered.

The fact that a duty of care exists does not mean that a school will be liable for an injury sustained by a student. In order for the student to succeed in a negligence claim, all of these elements must be established.

From 1 July 2017, an additional duty of care will exist for any organisation in Victoria that exercises care, supervision or authority over children, including schools. This duty of care will establish a presumption of liability, such that these organisations will need to prove that they took “reasonable precautions” to prevent child abuse, if they are to successfully defend a legal claim. The new duty does not change existing duties that schools and teachers already have, but instead reinforces the importance of ensuring that schools take reasonable precautions to minimise the risk of child abuse.

Rationale:

To explain the legal duties owed by teachers and school staff towards students.

Aims:

Principals and teachers are held to a high standard of care in relation to students. The duty requires principals and teachers to take reasonable steps to minimise the risk of reasonably forseeable harm, including:

ensuring the school complies with the seven Child Safe Standards

provision of suitable and safe premises

provision of an adequate system of supervision

implementation of strategies to prevent bullying

ensuring that medical assistance is provided to a sick or injured student

managing employee recruitment, conduct and performance

Implementation:

The duty is non-delegable, meaning that it cannot be assigned to another party.

Whenever a teacher-student relationship exists, teachers have a special duty of care. Generally, teachers are expected to take such measures as are reasonable in the circumstances to protect a student under their charge from reasonably foreseeable risks of injury.

The nature and extent of this duty will vary according to the circumstances.

The important issue in all cases will be what precautions the school could reasonably be expected to have taken to prevent the injury from occurring. This will involve consideration of the following factors:

identifying the risk of harm

the probability that the harm would occur if care were not taken

the likely seriousness of the harm

the burden of taking precautions to avoid the risk of harm

the social utility of the activity that creates the risk of harm.

Staff members are also cautioned against giving advice on matters that they are not professionally competent to give (negligent advice). Advice is to be limited to areas within a teacher’s own professional competence and given in situations arising from a role specified for them by the principal. Teachers must ensure that the advice they give is correct. Teachers should not give advice in areas outside those related to their role where they may lack expertise.

Duty of Care Outside of the School

Legal cases establish that a teacher’s duty of care does not start nor end at precise times during the day. The approach generally taken is that a teacher’s duty applies irrespective whether the risk occurs in or outside the school environment. However, the important issue in all cases will be whether the school took reasonable steps to protect the student from the risk.

Risks outside the school environment may sometimes call for immediate and positive steps by a school depending on the age of students, urgency and threat of injury.

Staff are responsible for their students at all times.

Resources:

The PROTECT Portal - provides further information on how schools can meet their obligations under the Child Safe Standards